Alert

Alert: Is Shale Gas Fracking an Ultra-hazardous Activity?

March 9, 2011

A federal district court in Pennsylvania has declined to find, as a matter of law, that hydraulic fracturing in natural gas shale wells is not “abnormally dangerous.”  In Berish v. Southwestern Energy Production Company, M.D. Pa., No. 3:10-CV-1981, 2/3/11, the defendants filed a Rule 12(b)(6) motion to dismiss claims by residents of Susquehanna County, Pennsylvania that defendants were strictly liable for the alleged discharge of fracking fluid into the ground, contaminating their water supply.  The strict liability claims were based on Pennsylvania jurisprudence that has applied Sections 519 and 520 of the Restatement (Second) of Torts to impose strict liability on persons who carry on an abnormally dangerous activity that causes harm to the person, land or chattels of another. Pennsylvania courts have previously held that storage of a toxic insecticide in a barn and the use of underground storage tanks for gasoline were not abnormally dangerous activities.  Defendants argued that following these holdings, the court should rule as a matter of law that underground natural gas drilling is not an abnormally dangerous activity.  The judge acknowledged that it is up to the court to determine as a matter of law whether an activity is abnormally dangerous so that strict liability will be imposed.  However, the court observed that the determination of whether an activity is abnormally dangerous is a fact-intensive inquiry and that most courts wait until discovery is completed before making that determination. Because the motion before the court was filed pursuant to Rule 12(b)(6), which requires the court to accept as true all of the facts alleged in the complaint, the court could grant the defendant’s motion to dismiss only if the plaintiffs failed to allege sufficient facts to invoke the six factors used under Section 520 of the Restatement (Second) of Torts.  The court concluded that the plaintiffs had alleged sufficient facts to put the defendants on notice as to their strict liability claim, although the court observed that the plaintiffs would likely have trouble meeting three of the six factors.  The court decided that it should wait until discovery was completed and then would consider the issue pursuant to a Motion for Summary Judgment if the defendants chose to file one. Although this ruling leaves open the possibility that strict liability will be imposed for shale gas fracking operations in Pennsylvania and other states that apply the Restatement (Second) of Torts, amendments to the Louisiana Civil Code in 1996 should prevent the imposition of strict liability for shale gas fracking operations in Louisiana.  Prior to 1996, Louisiana Civil Code Art. 667 imposed absolute liability on the proprietor of an estate for damage caused to his neighbors property by ultra-hazardous activities.  Louisiana courts had imposed absolute liability under this article for the storage of industrial waste in open pits, the application of herbicides to crops, pile driving and blasting. In 1996, the Louisiana legislature amended Art. 667 to provide that the definition of ultra-hazardous activity under that article is “…strictly limited to pile driving or blasting with explosives.”  The Louisiana Supreme Court affirmed in the case of Suire v. Lafayette City-Parish Government, 907 So.2d 37 (La. 2005) that the 1996 amendment to Art. 667 amounted to a legislative determination of what would constitute an ultra-hazardous activity and therefore the courts could impose absolute liability only for pile driving and blasting with explosives.  The Supreme Court held that using a backhoe to pound steel sheeting into the ground was not “pile driving” under Art. 667 and therefore did not subject the contractor to absolute liability for damage to neighboring property.  Under this strict interpretation of Art. 667, shale gas fracking operations should not be considered an ultra-hazardous activity. For questions or comments, contact a member of McGlinchey Stafford’s Environmental Team.